International Union, United Mine Workers Of America

162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD International Union , United Mine Workers of Amer- ica and District 15, United Mine Workers of America and Local Union No. 1972, United Mine Workers of America and Decker Coal Company. Cases 27-CB-2593, 27-CB-2593-1, and 27-CB-2593-2 May 23, 1989 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On January 10, 1989, Administrative Law Judge James M. Kennedy issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and Respondent International Union, United Mine Workers of America filed an answer- ing brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, International Union, United Mine Workers of America, its offi- cers, agents, and representatives, shall take the action set forth in the Order. i We agree with the judge that the formal settlement agreement con- taining the nonadmissions clause should be approved In doing so, we do not rely on the judge's statements that "the General Counsel wants more than a standard Board remedy, she wants a piece of Respondents' collec- tive hide as well" and "[w]hatever the General Counsel's motive may be here (possibly punitive) it is not necessary to consider it Michael J. Belo and Michael Pennington , for the General Counsel Brad Rayson, of Denver, Colorado , for Respondents and John L. Quinn (Stropp & Nakamura), of Birmingham, Alabama, for Local 1972 Jeffrey T. Johnson and Sandra Goldman (Holland and Hart), of Denver, Colorado, for the Charging Party DECISION STATEMENT OF THE CASE JAMES M. KENNEDY, Administrative Law Judge. This matter was heard before me on November 14, 1988, in Denver, Colorado It is based on a complaint issued by the Regional Director for Region 27 of the National Labor Relations Board alleging that each of the three Respondents, International Union, United Mine Workers of America (Respondent International); District 15, United Mine Workers of America (Respondent District), and Local Union No. 1972, United Mine Workers of America (Respondent Local), has engaged in certain vio- lations of Section 8(b)(1)(A) of the Act It is based on a charge filed on March 18, 1988, later amended on June 29, 1988 Specifically, the complaint' alleges that Re- spondents and their agents engaged in certain misconduct during a strike at the Charging Party's coal mine located near the town of Decker in Big Horn County, Montana The strike commenced on or about October 1, 1987, and continued at least through the date of the issuance of the complaint, June 2, 1988 At the hearing I was informed that the strike had been over for some time. The complaint originally set the matter for hearing in Sheridan, Wyoming, on November 15, 1988, estimated to last 2 weeks' On November 10, 1988, I conducted two lengthy conference calls with the parties These resulted in a request by all parties that the matter be advanced one day on the calendar so that a hearing on certain pro- posed settlement matters could be conducted. The instant hearing resulted and thereafter the matter was continued sine die so that I could take under advisement Respond- ent's motion that I approve or recommend the approval of three Board-style settlement agreements which they have reached with the Charging Party The General Counsel opposed them, insisting that Respondents sign the agreements which it has proposed Background and Settlement Proposals The complaint alleges Respondent, together, commit- ted some 39 acts of strike misconduct These include al- legations that Respondents' agents committed various violent acts in an effort to intimidate nonstrikers and/or their families. Specifically, these involve claims of beat- ings, rock throwing, using tire deflation devices, damag- ing automobiles, following nonstrikers' automobiles in a dangerous and reckless manner, blocking entrances and exits at the mine, and various threats and harassments of nonstrikers at their homes and other places Although the record is not totally clear regarding the date the counsel for the General Counsel first made set- tlement proposals, it appears to have been 1 week or 10 days before the hearing was scheduled to commence. At that time counsel for the General Counsel, acting under the supervision of the Regional Director, proposed infor- mal Board settlement agreements to each of the Re- spondents It appears that each of these proposals con- tained a nonadmissions clause Shortly thereafter, on in- structions from the General Counsel, counsel for the General Counsel revoked the informal settlement propos- al to Respondent International and insisted that it sign a formal settlement providing for the entry of a consent judgment before a United States court of appeals but still allowing for a nonadmissions clause. A day or two before the conference calls of November 10, counsel for i The original charge named all three respondents under a single docket number Because I have determined it appropriate, infra, to sever the cases against Respondent District and Respondent Local, I have re- numbered the cases, The case against Respondent District is hereby re- numbered Case 27-CB-2593-1 and the case against Respondent Local is hereby renumbered Case 27-CB-2593-2 294 NLRB No. 12 MINE WORKERS (DECKER COAL) 163 the General Counsel, again upon instructions from the General Counsel revoked the nonadmissions clause pro- posal for each of the three respondents and insisted on certain other language instead At no time did counsel for the General Counsel change or propose changes in the substantive remedial portions of the settlement pro- posals I should point out here that I was informed during the conference calls that all three Respondents had initially accepted the substantive terms but had been unable to formalize their acceptance because the Regional Office had not reduced them to writing During the calls, coun- sel for Respondents advised that they would still accept the General Counsel's substantive terms, and that Re- spondent International would agree to a formal settle- ment, so long as those agreements contained nonadmis- sions clauses Counsel for the General Counsel thereupon advised them that he was under instructions not to offer such terms. At that point the Charging Party advised Respondents that it had no objection to the Unions' terms and would join the Unions if they signed such agreements. Between the last conference call of November 10 and the hearing of November 14, Respondents, using stand- ard Board format and forms, prepared settlement agree- ments which in their substantive terms are virtually iden- tical to those offered by the General Counsel.2 Thus, I received as exhibits two formal settlement agreements covering Respondent International' purport- ed misconduct General Counsel's Exhibit 6(a) has been executed by Respondent International and the Charging Party, General Counsel's Exhibit 2 is its unexecuted con- terpart, actually proposed by counsel for the General Counsel The principal difference is found in paragraph 8 General Counsel's Exhibit 6(a) contains the standard Board nonadmissions clause General Counsel's Exhibit 2 contains language that the General Counsel describes as a "limited 'non-use' clause " In essence, that clause states that the Internationals entry into the settlement does not constitute an admission that any "employees" of the em- ployer had engaged in strike related misconduct and fur- ther contained the following proviso "[H]owever, that nothing herein shall constitute a bar in any investigation or proceeding by or against the Board or General Coun- sel of the Board to the consideration or use of any evi- dence obtained in the investigation or prosecution of these proceedings " Counsel for the General Counsel, in oral argument, made a two-fold assertion covering all three Respond- ents. First he said, "[O]ur primary objection [to Re- spondents' executed settlement agreements] is that we be- lieve that is necessary to assess some responsibility for these alleged unfair labor practices, upon primarily the Local and the International, and that in approving a set- tlement agreement with a non-admissions clause, we are effectively saying to the Local and to the International, `[Y]ou didn't really engage in this We are taking the ex- pedient of settling this case, but you didn't really engage in this allege misconduct "' Thereafter, he stated that he was also concerned with a recurrence of this activity in one or two years and that Respondents would be in a position of saying that although they had signed settle- ments they could not be used against them He said he was concerned because he thought that the settlement agreements should be used a later time to demonstrate that there had been these previous violations, thus prov- ing Respondents' "proclivity to violate the Act " He stated that if the settlement agreements contain a nonad- missions clause, they cannot be used for that purpose in the future. I should observe here that there also seems to be a third reason for the General Counsel's posture here I was informed by the parties that there are currently pending before the Regional Office a large number of 8(a)(3) charges filed by individual strikers alleging that they have not been reinstated after the strike ended and that the Charging Party failure to reinstate them is a vio- lation of that section of the Act Although the General Counsel did not specifically allude to that as a concern during either his oral argument or his Statement of Points and Authorities later submitted, it appears to me that the limited use language found in General Counsel's Exhibit 2 is directed at those cases, for it states that in paragraph 8 that "the settlement cannot be used as an ad- mission that any employees of the Employer [Charging Party] engaged in strike related misconduct " It seems to me that by insisting on this language the Gener- al Counsel is attempting to influence the manner in which evidence is to be received in the subsequent 8(a)(3) cases if and when complaints are issued It antici- pates the Employer attempting to utilize the settlement agreement as a defense and attempts to head off such use 3 Discussion 1. The General Counsel's desire to hold these Re- spondents responsible for their misconduct is not only understandable, but, up to a point, mandated by Section 10(c) of the Act That section empowers the Board to issue (and obligates the General Counsel to seek) orders remedying unfair labor practices. It does not, however, provide for the punishment of wrongdoers It has often been said that Board orders are always remedial, not pu- nitive, and are designed to set matters as they were absent the misconduct. See NLRB v. Haberman Construc- tion Co., 641 F 2d 351 (5th Cir 1981), Bandag, Inc. v. NLRB, 583 F.2d 765 (5th Cir 1978) Since each Re- spondent has assented to the General Counsel's substan- tive remedial terms, what more is the General Counsel seeking and is she entitled to it? Frankly, it seems to me that in signing these agree- ments, each Respondent has accepted the responsibility to remedy the allegation of the complaint, and the Gen- eral Counsel's demand that they be "assess[ed] some re- sponsibility for these alleged unfair labor practice" has been satisfied Yet she is not, she apparently wants more. 2 Insofar as there are minor changes in the notice to members, counsel for the General Counsel has stated on the record that he has no objection to them, they are said to make the notice more accurate 3 Such a tactic was used by an employer with some success in Gem Urethane Corp, 284 NLRB 1349, 1351 (1987) 164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I therefore discern that the General Counsel wants more than a standard Board remedy; she wants a piece of Re- spondent's collective hide as well. This can be seen in her claim that she wants to create evidence governing the scope of the remedy in future proceedings She asserts, correctly, that a settlement without a nonadmissions clause can be used to obtain a broad remedy if future violations are found to have oc- curred Tn-State Building Trades Council (Structures, Inc.), 257 NLRB 295 (1981); Carpenters (Lattanzio Enter- prises), 206 NLRB 67 (1973). Yet Board policy has always been to allow a respondent at least one violation if not several violations, to be remedied by settlement with a nonadmissions clause before disallowing them and setting the stage for a "proclivity history" allowing for a broad order As far as Respondent Local and Respondent District are concerned, the record shows that the instant com- plaint is the only claim that they have ever violated the Act Thus the General Counsel's position with respect to them seems far too premature. Whatever the General Counsel's motive may be here (possibly punitive) it is not necessary to consider it, for the informal settlements which these two have signed fully effectuates the reme- dial policies of the Act It may be that her considerations are seen in a differ- ent light when it comes to Respondent International, yet I am not fully convinced. Here the General Counsel has presented a copy of a Fourth Circuit contempt citation for noncompliance with the Act This citation, however, relates to a strike against a different employer (A M Massey, Inc ), in a different part of the country, West Virginia, Kentucky, and Pennsylvania Moreover, it has not been shown that any of the individuals involved are the same. Indeed, counsel for the General Counsel has conceded on the record that his most difficult item of proof would be showing that the International's putative agents were acting within the scope of their authority when they committed the acts in question When balanc- ing the scope of the substantive remedy against these other concerns, including the length and expense of the trial, as well as the long wait for the remedy which is now being assented to, I find the General Counsel's op- position to the nonadmissions clause to be unwarranted This formal settlement provides for the entry of a court judgment which is immediately enforceable by contempt proceedings in the event of a recurrence Lack of a non- admissions clause seems a small price to pay for the im- mediacy and strength of such a remedy 2. The General Counsel's concern for future matters seems to me beyond the scope of this case Neither I nor the Board can be concerned with litigation postures which might be taken in cases which are not before us. Two of the General Counsel's concerns fall within this category her concern with later probing Respondent's "proclivity" to violate the Act and her "limited non-use" clause. The latter is clearly aimed avoiding the Gem Ure- thane holding and the former almost falls into the catego- ry of evidence creation. I am unable to countenance either Moreover, the proviso language contained in the limit- ed use clause seeking to modify the preceding clause is most unclear, although it seems to be attempting to pre- serve some sort of right to the General Counsel for future proceeings Even so, exactly what is intended cannot be determined, only guessed at Since its meaning is unclear, indeed, confusing, I cannot concur with the General Counsel's that it be included in a settlement pro- posal Confusion has no place in a government document describing a party's legal rights and obligations Whatever its meaning, the fact that it may be invoked at some indefinite time in the future, in a proceeding yet to crystalize, also leads me to the conclusion that it is an unnecessary impediment to the settlement of this case Section 10(c) of the Act clearly directs the Board to remedy unfair labor practices which are before it It does not authorize the Board or the General Counsel to seek a more favorable posture for future litigation When comparing the executed formal settlement with that of the one now preferred by the General Counsel, I can only conclude that the executed agreement is more in harmony with Section 10(c) than the other Accordingly, I conclude that the formal settlement agreement, General Counsel's Exhibit 6(a) warrants the Board's approval, and I so recommend. In addition, there appears no valid reason to disapprove the informal settle- ments in Cases 27-CA-2593-1 and -2, Exhibits 6(b) and 6(c) As I have direct authority to approve them myself I shall do so by severing those matters and issuing a sepa- rate order approving them today. Based on the foregoing I recommend that the Board approve the formal settlement entered into by Respond- ent International and Charging Party in this matter as if fully remedies the violations alleged and in all respects effectuate the policies if the Act. It should therefore enter the following ORDER The Respondent, International Union, United Mine Workers of America, its officers, agents, and representa- tives, shall 1 Cease and desist from restraining and coercing em- ployees of Decker Coal Company, or any other employ- er, in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Post at its union offices in Denver, Colorado, Washington, D C., Sheridan, Wyoming, and other offices in the States of Montana and Wyoming, copies of the at- tached notice marked "Appendix "' Copies of the notice, on forms provided by the Regional Director for Region 27, after being signed by the Respondent's authorized representative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the 4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " MINE WORKERS (DECKER COAL) notices are not altered, defaced, or covered by any other material (b) Mail to the Regional Director signed copies of the notice for posting at the Decker Coal Company facilities including the Big Horn County, Montana, mine facility, in places where notices to employees are customarily posted Copies of the notice, on forms provided by the Regional Director, after having been signed by Respond- ent's representative, shall be forthwith returned to the Regional Director for such posting by Decker Coal Company (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply IT IS FURTHER ORDERED that Cases 27-CB-2593-1 and -2 be, and hereby are severed, the informal settlement agreements covering them to be approved by separate order. APPENDIX NOTICE To EMPLOYEES AND MEMBERS Posted Pursuant to a Stipulation Providing for a Board Order and a Consent Judgment of any Appropriate United States Court of Appeals Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities In recognition of these rights WE WILL NOT, nor will our officers, employee repre- sentatives, agents, or anyone acting for us whatever his 165 or her title may be, restrain or coerce Decker Coal Com- pany employees in the exercise of their right not to join or support any labor dispute with Decker Coal Compa- ny More specifically- WE WILL NOT attempt to inflict and inflict bodily harm on any employee WE WILL NOT attempt to cause or cause damage to the vehicles of any employees, by any means, including throwing rocks and other objects, use of tire-deflation devices, pounding with fists, slashing tires, scratching with sharp objects, or using harmful solvents WE WILL NOT follow vehicles of any employee to or from work or drive in a dangerous and reckless manner intended to harass and intimidate any employee. WE WILL NOT block or hinder the entrance or exit of any employee or supervisor, while they are going to or from the Employer's facilities WE WILL NOT threaten any employee or supervisor or their relatives with physical violence WE WILL NOT threaten or harass any employees or their relatives at their places of residence by following them home, blocking their entrances, shining spotlights into their homes, setting off firecrackers, placing tire-de- flation devices in their driveways, shooting at windows with a BB gun, or engaging in surveillance of their homes WE WILL NOT fail or refuse to denounce such conduct and take affirmative action to cause those acting for us or within our control to immediately cease such activity. WE WILL NOT in any other manner restrain or coerce employees of Decker Coal Compnay or any other em- ployees in the excretes of their rights under Section 7 of the National Labor Relations Act to refrain or withdraw from supporting our labor dispute with that employer and to work for Decker Coal Company INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA